State ex rel. Hemmons v. Cuyahoga Cty. Bd. of Elections , 2023 Ohio 1148 ( 2023 )

[Cite as State ex rel. Hemmons v. Cuyahoga Cty. Bd. of Elections, 2023-Ohio-1148.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, EX REL.,
WILLA HEMMONS, :
Relator, :
No. 112403
v. :
CUYAHOGA COUNTY BOARD
OF ELECTIONS, ET AL., :
Respondents. :
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT DENIED
DATED: April 4, 2023
Writ of Procedendo
Order No. 563279
Appearances:
Willa M. Hemmons, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mark R. Musson, Assistant Prosecuting
Attorney, for respondents.
EILEEN T. GALLAGHER, J.:
On February 14, 2023, the relator, Willa Hemmons, commenced this
writ action against the respondents the Cuyahoga County Board of Elections and its
board members, Jeff Hastings, Imajo Chappell, Terrence McCafferty, and Lisa
Stickan (“the Board”). The gravamen of this action is to compel the Board to
schedule a special recall election for three city of East Cleveland council members,
Korean Stevenson, Patricia Blochowiak, and Juanita Gowdy. The specific claims
stated in the complaint are for (1) declaratory judgment that the Board violated
Hemmons’s due process rights under the Ohio and United States Constitutions, (2)
a Title 42 United States Code § 1983 claim for deprivation of equal protection and
selective enforcement, and (3) a § 1983 claim for deprivation of substantive and
procedural due process. Hemmons claims that she is seeking a writ of procedendo
to have the Board schedule the recall election. She further seeks to have this court
declare that the recall petitions are valid and that the Board erred in denying the
signatures of over a thousand registered voters to have recall elections for the three
council members. In paragraph 41, she includes the sentence: “a writ of mandamus
is appropriate.”
This court set a briefing schedule ordering the parties to submit
evidence and briefs by March 3, 2023, and reply briefs by March 10, 2023. The
parties have complied with the order and have also filed notice of the outcome of
ancillary litigation. This court has reviewed the filings, the evidence, the briefs, and
the decision resolving the ancillary litigation, State ex rel. Richardson v. Gowdy,
Slip Opinion No. 2023-Ohio-976. This case is ripe for resolution.
Factual and Procedural Background
The city of East Cleveland is a charter municipality, and Charter
Sections 49 through 54 govern recall elections. The recall procedure is started by a
qualified elector of the city obtaining from the Clerk of Council blank recall petitions.
The elector must make and submit to the Clerk of Council an affidavit stating the
name of the council member whose removal is sought. Upon issuing the petitions,
the Clerk of Council shall record the name of the elector to whom the petitions were
issued and the date of issuance. In order for the recall election to be held, the
petition must be signed by East Cleveland electors who voted in the last regular
election of each municipal officer whose recall is sought, equal in number to at least
25 percent of the total number voting at the last regular election of each such
municipal officer in which his or her office was contested.
Upon obtaining sufficient signatures within 30 days, the elector must
file the petition with the Clerk of Council, who must then certify upon the petition
whether the signatures amount to at least 25 percent of the voters voting in the last
regular municipal election of officers. If sufficient valid signatures are obtained,
then the Clerk of Council must notify the subject council member and deliver to the
election authorities a copy of the original petition with the certificate that the
petition has at least 25 percent of the voters voting in the last municipal election, i.e.,
that it is a valid recall petition. If the subject council member does not resign within
five days of being presented with the recall petition, the Clerk of Council shall notify
the elections authorities of the fact, and the election authorities shall forthwith
schedule the recall election. Such election shall be held not less than 60 days nor
more than 90 days after the expiration of the five-day period.
Charter Section 111.03(a) provides that the President of Council shall
appoint and/or terminate the Clerk of Council, and Council may also elect such other
officers and employees of Council, as it deems necessary. Subsection (b) provides
that an assistant Clerk of Council may also be appointed in the same manner as
specified in subsection (a). Subsection (c) allows Council to appoint a Clerk Pro
Tempore or Deputy Clerk, in the absence of the Clerk upon such terms and
conditions as Council may determine.
On December 21, 2022, Clerk of Council Tracy Udrija-Peters issued
blank recall petitions to electors seeking to recall the three council members. On
January 3, 2023, the East Cleveland City Council elected Korean Stevenson as
Council president, and he terminated Udrija-Peters as Clerk of Council and the
Deputy Clerk of Council. This left the Council without a clerk. On January 4, 2023,
Council Member Nathaniel Martin solely on his own initiative named Law Director
Willa Hemmons as temporary Clerk of Council. This appointment was ineffective
because it was contrary to the Charter provisions.
On January 20, 2023, Hemmons accepted the recall petitions. She
reviewed the petitions for valid signatures and certified that the three petitions had
a sufficient number of valid signatures to hold a recall election. She so notified the
three subject council members pursuant to the requirements of the charter and
submitted the petitions to the Board of Elections along with her certification that
there were sufficient, valid signatures, so that the Board should schedule the recall
elections.
On February 13, 2023, the Board of Elections conducted a hearing on
whether it should schedule the recall elections. During the hearing, Hemmons
admitted that she was not the Clerk of Council. (Tr. 5.) Accordingly, the Board of
Elections did not schedule the recall elections, because the recall petitions were not
processed and presented as required by the East Cleveland Charter. Hemmons then
commenced this action.
Legal Analysis
This court first notes that the specific claims Hemmons avers to are not
appropriate. Her first claim is for a declaratory judgment that the Board of
Elections’ selective action is unconstitutional as applied as alleged in the complaint.
However, this court does not have jurisdiction to issue such declaratory judgments.
State ex rel. Hogan v. Ghee, 85 Ohio St.3d 150, 707 N.E.2d 494 (1999), and State
ex rel. Williams v. Trim, 145 Ohio St.3d 204, 2015-Ohio-3372, 48 N.E.2d 501.
Similarly, this court has original jurisdiction only over the five extraordinary writs.
It does not have jurisdiction to adjudicate § 1983 actions. State ex rel. Rodgers v.
Corrigan, 8th Dist. Cuyahoga No. 55503, 1988 Ohio App. LEXIS 4993 (Dec. 5,
1988).
The claim for procedendo is also problematic. The writ of procedendo
is merely an order from a court of superior jurisdiction to one of inferior jurisdiction
to proceed to judgment. Yee v. Erie Cty. Sheriff’s Dept., 51 Ohio St.3d 43, 553 N.E.2d
1354 (1990). Procedendo is appropriate when a court has either refused to render a
judgment or has unnecessarily delayed proceeding to judgment. State ex rel.
Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 696 N.E.2d 1079(1998). However, the writ will not issue to control what the judgment should be, nor
will it issue for the purpose of controlling or interfering with ordinary court
procedure. Thus, procedendo will not lie to control the exercise of judicial
discretion. In the present matter, even assuming that the Board of Elections was
exercising judicial power at the February 13, 2023 hearing, it has already reached a
decision.
Viewing Hemmons’s complaint in a favorable light, she does plead
mandamus. The requisites for mandamus are well established (1) the relator must
have a clear legal right to the requested relief, (2) the respondent must have a clear
legal duty to perform the requested relief, and (3) there must be no adequate remedy
at law. State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978). A
relator must establish the elements for mandamus by clear and convincing evidence.
State ex rel. King v. Cuyahoga Cty. Bd. of Elections, Slip Opinion No. 2022-Ohio-
3613. Against a board of elections, the first two elements require a court to
determine whether the board engaged in fraud, corruption, or abuse of discretion or
acted in clear disregard of applicable law. Id. Mandamus is an extraordinary
remedy that is to be exercised with caution and only when the right is clear. It should
not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364
N.E.2d 1 (1977).
The East Cleveland Charter requires the Clerk of Council to certify the
sufficiency of the recall petitions and issue certificates of the petitions’ sufficiency to
the Board of Elections. The Clerk of Council did not perform those functions. Willa
Hemmons was not the Clerk of Council and could not perform them. The Board of
Elections did not abuse its discretion in declining to schedule the recall elections
because the required procedure was not fulfilled.
Hemmons invokes East Cleveland Charter Section 87, which provides
that all general laws of Ohio applicable to municipalities and not inconsistent with
the Charter shall apply to East Cleveland. Thus, she argues that when there is no
Clerk of Council, R.C. 7o5.92 becomes the default provision for recall elections in
East Cleveland and requires the Board of Elections to schedule those elections. The
Supreme Court of Ohio rejected this argument in State ex rel. Richardson v. Gowdy,
Slip Opinion No. 2023-Ohio-976.
Hemmons’s final argument is that Stevenson obstructed the electoral
process by firing the Clerk of Council and the Deputy Clerk of Council. She continues
that the three subject council members then further obstructed the electoral process
by failing to appoint a new Clerk of Council. Hemmons concludes that because the
recall petitions have a sufficient number of signatures, the Board is collaborating
with the obstruction and abuses its discretion by failing to schedule the recall
elections.
This argument was presented to the Ohio Supreme Court in
Richardson, that the circumstances of this case warrant bypassing the clerk’s duty
under the charter and permitting the Board of Elections to certify the sufficiency of
the petitions and to schedule the recall elections. The Supreme Court rejected this
argument by ruling that the Board did not have the duty to certify the petitions. The
Court also noted that a new Council President in March 2023, appointed a new Clerk
of Council and instructed the clerk to make the recall petitions the top priority. It
was not an abuse of discretion for the Board of Elections not to disregard the stated
law and proceed on what some may think was a just course of its own making.
Accordingly, this court denies the application for an extraordinary
writ. Relator to pay costs. This court directs the clerk of courts to serve all parties
notice of the judgment and its date of entry upon the journal as required by Civ.R.
58(B).
Writ denied.
_________________________
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR